Mosher v. Helfend

[49]

ROTH, J.,

pro

tem.

The litigants in this action formed a partnership in June of 1925 for the purpose of buying English walnuts in Boumania to sell in the United States, and contributed capital in varying amounts, agreeing, nevertheless, to divide the profits equally. Bespondent contributed to the capital of the partnership substantially more than the combined contributions of the two others, who are the defendants and appellants herein. Bespondent alleged, and the court found, that they also agreed that in the event a loss were sustained that such loss would be shared equally by all three.

Bespondent alleged and the court found, although the record is absolutely devoid of any evidence to sustain said finding, that a loss of $36,700.58 was suffered entirely by respondent. The record does show with overwhelming redundancy that the venture was a failure. An affidavit was introduced in evidence signed by respondent and appellant Helfend which avers under collective oath of the two mentioned, that in the deal in question B. M. Helfend contributed $5,000, Bernson $2,000 and William Mosher '$36,000, and then proceeds to recite: “That said B. Berenson” (meaning appellant Bernson), “was a silent partner in said transaction and that said Berenson is indebted to said partnership for his portion of the loss, or profit incurred therein.”

What the awesome significance of the said recital is, or what the affidavit or any part of it establishes, except that two of the partners went on record under oath as to the specific amounts that had been contributed by all three, is beyond the grasp of this court. With the exception of the affidavit mentioned (the value or relevancy of which we do not understand), there is not a scintilla of evidence, upon which the finding can be based, that the' respondent suffered a loss of $36,700.58.

The amended complaint, upon which the parties went to trial, is by respondent as plaintiff against his two partners as defendants. It alleges a partnership for the purpose and upon the terms mentioned. It alleges a loss suffered by plaintiff in the sum found, and then proceeds to recite that a suit was filed by respondent and appellant Helfend, “doing business as Helfend and Mosher, copartners”, against the California Bank, a corporation, “to recover the said loss”. Bespondent at the trial testified that the suit was brought on